Sexual Harassment:

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Sexual Harassment

• A Guide to Working a Complex and Sensitive
  Investigation

Cornell Dillard Chief Human Relations Officer
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Training Objective

• Know the Law
• Investigative Techniques
• Importance of Confidentiality
• Importance of Case Closure

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The Law

• Federal Statutes

Such as
The 1964 Civil Rights Act
Title VII
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The Law

• Title VII does not explicitly prohibit sexual
  harassment, but the U.S. Supreme Court has made
  clear that it is a form of unlawful sex
  discrimination in violation of the Civil Rights
  Act.

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The Law

• State Statutes

Such as
State Human Rights Acts
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The Law

• Some sexual harassment may violate state fair
  employment practices laws, and it may serve as a
  basis for a tort claim.

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The Law

• Oncale v. Sundowner Offshore Service, Inc., 523
  U.S. 75 (1998)
• The Supreme Court decided that Title VII applied
  to same-sex harassment cases where the plaintiff
  can prove that the harassment is because of the
  plaintiffs sex. But if an employee is harassed
  solely because he or she is gay, that does not
  violate Title VII, since the Act does not
  prohibit discrimination based on sexual
  orientation.

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The Law

• Some state and local jurisdictions prohibit
  discrimination based on sexual orientation.
• For example, the Sexual Orientation
  Non-Discrimination Act of New York State
  prohibits discrimination on the basis of actual
  or perceived sexual orientation (heterosexuality,
  homosexuality, bisexuality, asexuality) in
  employment, housing, public accommodations,
  education, credit, and the exercise of civil
  rights.

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The Law

• Municipal Codes/Ordinances

Such as

• City rules
• County codes

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The Law

• Employment Policy Manual

Such as

• Employees Handbook

• Departments Policies/Rules

• Union/Employment Contract

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Investigative Techniques

• Learn all the facts!

• Identify the Principals
• Complainant or Harassee
• The Accused or Harasser
• Witnesses
• identified by the Complainant
• identified by the Accused
• The Supervisor or Manager

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Investigative Techniques

• Interview all principals
• Make a list of sub-candidates identified by
  principals
• Target individuals for an interview that may
  offer direct testimony (eye-witness accounts)
• Avoid individuals with second-hand information
  from a third party

• Avoid office sweeping interviews!

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Investigative Techniques

• Listen to everything!
• Avoid interrupting the interviewee
• Write down your questions beforehand
• Try to maintain eye contact with interviewee as
  much as possible
• Avoid nodding and making emotional facial
  expressions
• Resist the mmhmm and humph

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Investigative Techniques

• Ask questions!
• Repeat the question in a different way later in
  the interview
• Look for inconsistency
• Avoid filling in the blank responses
• Dont settle for the You know?
• Dont let the interviewee turn you into the
  interviewee!
• Be careful of the answer the question with a
  question responses

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Confidentiality

• PRIVACY
• DEFAMATION
• QUALIFIED PRIVILEGE

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Confidentiality

• PRIVACY

• When reviewing the legality of investigations,
  the law generally balances an employers interest
  in maintaining a safe and efficient work force
  against the employees right to be free from
  unreasonable invasions of privacy.

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Confidentiality

• Under the common law, there are three types of
  privacy rights that are directly relevant to
  investigations

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1. Public disclosure of private
facts(informational privacy)

• The right to privacy includes the right to keep
  certain personal information from public
  knowledge. Informational privacy prohibits
  employers from disclosing information that would
  be offensive to a reasonable person and not of
  any legitimate concern to the public.

Confidentiality
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Example

• If an investigation publicizes information about
  an individuals private affairs, such as having
  AIDS or being HIV-positive, the individual may
  sue for an invasion of privacy.

Confidentiality
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2. Placing in a false light(false light privacy)

• If an investigating employer assigns false
  attributes or associations to the targeted
  employee, and these false attributes are
  broadcasted to a large number of people, there
  may be recovery for invasion of privacy.

Confidentiality
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Example

• Wrongly labeling someone a racist or a child
  molester may be enough to create liability for
  false light privacy, even if there is no injury
  to the employees reputation.

Confidentiality
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3. Intrusion into anothers seclusion(autonomy
privacy)

• The right to privacy protects employees physical
  and psychological space. Basically, unless
  there is a legitimate business purpose, employees
  have a right to be left alone. Accordingly, any
  intrusion of an employees physical environment
  or psychological liberty could be a common law
  invasion of privacy.

Confidentiality
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Example

• No Federal laws offer protection against
  discrimination of smokers, but several states
  have passed laws prohibiting employers from
  refusing to hire smokers.
• Also, employees cannot be prevented from smoking
  when off-duty or on break.
• But, states and municipalities may regulate
  smoking in public areas.

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Confidentiality

• DEFAMATION of CHARACTER

• During an investigation, damaging and perhaps
  false information may be obtained. Anyone who
  divulges information gained in an investigation
  to others, including co-workers, office staff and
  personal friends, risks liability for defamation
  of character.

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Defamation typically means

• A false oral or written statement

• Communicated to a third party

• That injures an individuals reputation by
  exposing the person to hatred, contempt, or
  ridicule, or by causing the person to be shunned
  or avoided and
• That is unprivileged.

Confidentiality
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Qualified Privilege

• An employer has a qualified privilege to divulge
  even defamatory information to persons who have a
  demonstrated need to know the information.

Example

• The person in charge of the investigation
• Disciplinary Committee
• Appointed authority (Director/Deputy
  Director/Division Directors)
• Legal Unit

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Qualified Privilege

• The privilege does not apply to defamatory
  information that is disclosed in bad faith or
  that lacks credibility.

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Case Closure

• Courts often look to the thoroughness of an
  investigation when deciding the extent of an
  employers liability.

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Example

• Claim led to a 17 million judgment against a
  California aircraft manufacturer.
• The HR representative who investigated the claim
  was chastised by the court for not investigating
  further.
• The HR only focused on the original written
  complaint submitted by the complainant.
• Booker v. Budget Rent-A-Car Systems, 17 F. Supp.
  2d 735 (M.D. Tenn. 1988).

Case Closure
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Case Closure

• Take it Seriously!
• Avoid the risk of treating every complaint as
  routine and simply a dress rehearsal

• Promptly Investigate!
• If you have several pending cases, simply notify
  the complainant that you received the complaint
  and that he or she will be contacted in the near
  future.
• Do follow-ups to remind the complainants that
  their cases are important and that the case is
  still active.

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Case Closure

• Create Written Record(s)
• Always document your conversation. Everything
  should be on the record.
• This is especially true when conducting telephone
  interviews

• Cite laws/statutes/policies in your report
• This allow reviewers (courts/executives/independen
  t investigators) to know if laws have been broken
  and/or rules violated.

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Case Closure

• Include anti-retaliation communication
• Inform complainants to follow up with you if they
  sense retaliation.
• Actively remind the subject of the complaint that
  any conduct of a retaliatory nature toward the
  complainant is strictly prohibited.

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Conclusion

• BE SENSITIVE yet IMPARTIAL
• AVOID APPEARANCE OF BEING A RUBBER STAMP FOR
  MANAGEMENT
• BE INFORMED
• Know the statutes/policies/codes
• Review the organizational chart of principal
  parties
• BE RESPECTFUL
• ASK THE RIGHT QUESTIONS

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Conclusion

• Be Professional!
• Avoid
• T.V Detective
• Super Detective

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Electronic Discovery Rules

• Effective December 1, 2006.
• Requires parties in federal litigation to
  preserve electronic evidence.
• Requires parties to produce electronically stored
  information that is ordinarily maintained or
  reasonably usable.
• Failure to preserve and produce electronic
  discovery might result in sanctions and/or
  adverse inference instructions at trial.

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Point of Interest

• Baldwin v. Blue Cross/Blue Shield of Alabama
  (11th Cir. March 19, 2007).
• Employee second-guessed adequacy of employers
  investigation into her complaint of harassment.

Conclusion
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Point of Interest

• HELD Employer is not required to conduct a
  full-blown, due process, trial-type proceeding in
  response to complaints of sexual harassment. All
  that is required of an investigation is
  reasonableness in all of the circumstances and
  the permissible circumstances may include
  conducting the inquiry informally in a manner
  that will not unnecessarily disrupt the company's
  business, and in an effort to arrive at a
  reasonably fair estimate of truth.

Conclusion
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What would the Court say about your investigation?
Conclusion
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QUESTIONS?

• Cornell Dillard
• Chief Human Relations Officer
• Cornell.dillard_at_dolir.mo.gov
• Missouri Department of Labor and Industrial
  Relations
• 573-751-1339